On February 16, 2017, the U.S. Court of Appeals for the District of Columbia ordered a rehearing en banc of the appellate panel's decision in PHH Corp. v. Consumer Financial Protection Bureau. In doing so, the Court vacated an original October 11, 2016, panel opinion that found the structure of the Consumer Financial Protection Bureau ("CFPB") to be unconstitutional. Rehearing en banc is scheduled for May 24, 2017.

The D.C. Circuit originally had ruled that the CFPB's single-member structure was unconstitutional because it conferred excessive power on a single individual who was not subject to the control of the Executive Branch. In its rehearing order, the Court directs the parties to address the following issues in briefs to be submitted by March 10, 2017:

  1. "Is the CFPB's structure as a single-Director independent agency consistent with Article II of the Constitution and, if not, is the proper remedy to sever the for-cause provision of the statute?"
  2. "May the Court appropriately avoid deciding that constitutional question given the panel's ruling on the statutory issues in this case?"
  3. "If the en banc Court, which has today separately ordered en banc consideration of Lucia v. SEC, 832 F.3d 277 (D.C. Cir. 2016), concludes in that case that the administrative law judge who handled that case was an inferior officer rather than an employee, what is the appropriate disposition of this case?"

Commentary/ Scott Cammarn

The decision to rehear the case raises anew the question whether President Trump may replace CFPB Director Richard Cordray prior to the end of his scheduled term in July 2018, absent a showing of "inefficiency, neglect of duty, or malfeasance in office. See generally " The Trump Administration: Change by Appointment." 

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